State ex rel. Lathrop v. Dowling

• Decision Date: 31 March 1872
• Citation: 50 Mo. 134
• Parties: THE STATE OF MISSOURI ex rel. JOHN L. LATHROP, Plaintiff in Error, v. JOHN D. DOWLING et al., Defendants in Error.
• Court: Missouri Supreme Court

50 Mo. 134

THE STATE OF MISSOURI ex rel. JOHN L. LATHROP, Plaintiff in Error,

v.JOHN D. DOWLING et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to Hannibal Court of Common Pleas.

James Carr, for plaintiff in error.

There was no appeal, or other mode of review, of the assessment made under the authority of the city of Hannibal, complained of in this case. Hence the issuing of a writ of certiorari was the proper remedy to test the jurisdiction and authority of the assessor for making said assessment, and of the city council for passing the ordinances levying the taxes complained of. (The People, etc., v. Beardsley, etc., 52 Barb. 105; The People, etc., v. Comm'rs of Taxes, 23 N.Y. 224; The People, etc., v. Commissioners, id. 192; 2 Black, 635; Snoddy v. Pettis County, 45 Mo. 361; Hann. & St. Jo. R.R. Co. v. Martin, 27 Mo. 317.)G. H. Shields, for defendant in error.

The petition of the plaintiff in error avers and the writ shows a state of facts which, if true--to-wit: that the tax was unconstitutional and erroneous-- would have subjected the tax collector to an action for damages in the event he levied on relator's property. The fault is not in an improper assessment, or irregular or illegal assessment for other reasons, but an absolutely void assessment. If true, the relator had an adequate remedy at law. (State v. Shacklett, 37 Mo. 283; 30 Mo. 550.)

This position does not conflict with the later cases in the court where certiorari has been used or recommended (47 Mo. 462; id. 594), for in these cases the question was as to the erroneousness of the amount. Again, this distinction is made in the case of Glasgow v. Rowse, 43 Mo. 479, and the court holds that if the law under which the proceedings were had be not unconstitutional, an action of trespass would not lie against the collector; although certiorari might lie to correct an erroneous assessment, it would not lie to correct a void assessment. Certiorari will not lie where there is another adequate remedy. See cases cited above. (People ex rel. Onderdonk v. Supervisors, 1 Hill, N. Y., 195.)

The writ being a discretionary writ, and liable to be abused, should be ordered only in necessary cases. The New York authorities condemn its indiscriminate use, and especially in cases like the one at bar. (People v. Mayor, 2 Hill, 9; In matter of Mt. Morris Square, 2 Hill, 14-29.) The writ is multifarious in this: it commands the defendants, as city council, to return by what warrant they confirmed the assessment. It will not lie to a legislative body. (People v. Board of Health, 20 How. 458; Starr v. Trustees of Rochester, 6 Wend. 564; 23 Wend. 277.)

The right of the city, under State authority, to tax national State bank stocks, or the shares listed with other personal property of the individual shareholders as part of his personal property, is settled by the Supreme Court of the United States (3 Wall. 573; Van Allen v. Assessor, 4 Wall. 559; id. 244), and was fully and ably discussed by this court and decided in Lionberger v. Rowse, 43 Mo. 67, and authorities cited.BLISS, Judge, delivered the opinion of the court.

A writ of certiorari was issued to defendant, as a board of appeals from the assessment of taxes by the assessor of the city of Hannibal, which was finally quashed, and the following points were made at the hearing:

1. It was urged that the court had no jurisdiction by this writ over the proceedings sought to be reviewed. The action of the board of appeals is judicial in its nature, and this is the proper mode of reviewing its proceedings. (Lee's Adm'r v. St. Louis County Court, 47 Mo. 594.)

2. The object of the proceeding was to test the legality of an assessment upon the relator's shares in the First National Bank of Hannibal, and it was also urged that if the shares were exempt from taxation, as claimed by relator, the proceedings were void, and the collector would be personally liable; and thus, there being another remedy, this writ would not lie. But the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction. Says Savage, J., in Starr v. Trustees, etc., 6 Wend. 567: “It may be said that these plaintiffs have their remedy by action, therefore certiorari will not lie. Where there is no jurisdiction there is a remedy by action, but that does not deprive this court of jurisdiction, nor prevent a party injured from pursuing this remedy.” (See also State v. Thompson, 2. N.H....